Monday, November 23, 2009

Deferring the Dream: Alternative U.S. Immigration Strategies

One of the recurring points when I speak with would-be investors abroad has to do with the timing of their U.S. immigration. The vast majority are interested in securing U.S. permanent residency, via EB-5 Immigrant Investor status or another category...but just not yet. Instead, what they seek is a Plan B, a back pocket "Get Out of Jail Free" card (sometimes figuratively...other times NOT!) which gives them the peace of mind they want TODAY via the creation of a structured move to the U.S. tomorrow.

Most attorneys, inside-the-box-thinkers we are bred to be, will tell you that you cannot have your cake and eat it, too: because the securing of U.S. permanent residency requires the present INTENT to immigrate, you can't simply get your permanent residency approved then turn around and leave the U.S. and go home (even with a reentry permit, except in very special circumstances.) And that assertion is correct based as far as what the law says. But the truth is that the law permits creative structuring of immigration timing in the permanent residency process, and an outside-the-box immigration attorney can create solutions which achieve the particular immigrant's objectives while adhering strictly to the letter of law. Here is a great example of how one past client deferred his immigration...and legally saved millions of dollars.

Jorge is a national of a Latin American country and has been residing and working in an offshore island known for its wonderful tax laws. His country of nationality does NOT have a worldwide income tax regimen, so he is in full compliance with its laws; his place of legal residency - the offshore haven -- taxes neither income nor estate. In short, he was in utter tax bliss..until he decided to retire to the U.S.

Jorge's son is an adult U.S. citizen, making the IR-5 category an easy path to permanent residency for Jorge and his wife. One huge problem: the minute they are approved as U.S. permanent residents, they become subject to worldwide taxation AND estate taxation.

In this particular case, although I could have gotten Jorge and his wife permanent residency in a matter of months, I didn't: instead I directed them to not one but two tax attorneys. The first lawyer practiced in his place of residency, the tax haven. The second, in the U.S. Why two? Well, because Jorge was NOT subject to U.S. tax laws at the time we started planning his immigration, I wanted the offshore tax lawyer to first address the numerous tax planning issues from HIS perspective...not restricted by U.S. tax laws which did not yet apply to the client. (Think about it: the U.S. tax attorney is limited to giving advice under the U.S. tax regimen...his span of options is considerably more limited.) Next, I wanted to be sure that what the offshore tax counsel structured would comply fully with U.S. tax laws.

In this case, we deferred the immigration process over a year in order to get Jorge's properties and his worldwide assets in order. Through careful planning, the tax attorneys were able to save Jorge several million dollars in income taxes as well as create a durable private placement insurance solution which will, at the time of his death as a U.S. tax resident, cover his estate tax responsibilities and allow his heirs to receive the bulk of his estate...intact.

Whether it's for tax planning purposes, to let the kids finish school abroad yet secure their residency in the U.S. before they turn 21, or whatever, the point is that solutions exist. If this sounds like the kind of creative lawyering you want on your team, you know who to contact...(-;